Vickers v. Progressive Cas. Ins. Co., 73885

• Decision Date: 18 August 1998
• Docket Number: No. 73885,73885
• Citation: 979 S.W.2d 200
• Parties: Larry VICKERS, et al., Plaintiffs/Appellants, v. PROGRESSIVE CASUALTY INS. CO., Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 200

979 S.W.2d 200

Larry VICKERS, et al., Plaintiffs/Appellants, v. PROGRESSIVE CASUALTY INS. CO., Defendant/Respondent.

No. 73885.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 18, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 6, 1998.

James E. Lownsdale, Bradenburg & Lownsdale, Clayton, for Plaintiffs/Appellants.

Robert L. Nussbaumer, Robert L. Nussbaumer & Associates, St. Louis, for Defendant/Respondent.

SIMON, Judge.

Plaintiffs, Larry Vickers (Larry), his daughters Ashley, Brittany, and Nicole, and his wife Donna, (collectively plaintiffs) appeal from the trial court's dismissal of their claim for negligent misrepresentation in Count VII of their First Amended Petition, and its refusal to allow them to add Count VI(a) to allege breach of contract, and to amend Count VIII to state a claim for common law fraud, in an action for damages against Progressive Casualty Insurance Co. (Progressive).

Plaintiffs contend on appeal that the trial court erred in: (1) dismissing Count VII for negligent misrepresentation on the basis that Progressive owed plaintiffs no duty; (2) denying plaintiffs' request for leave to add Count VI(a) for breach of contract; and (3) abusing its discretion in denying plaintiffs' request for leave to amend Count VIII of its petition to allege common law fraud. We affirm in part and reverse and remand in part.

In reviewing the circuit court's dismissal of a petition, this court determines if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. We treat the facts averred to as true and construe the averments liberally and favorably to the plaintiff. Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 834 (Mo.banc 1985). A petition is not to be dismissed for failure to state a claim if any set of facts is asserted which, if proved, would entitle the plaintiff to relief. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 61 (Mo.banc 1988).

The record reveals that on or about May 27, 1995, Larry and his daughters Ashley, Nicole, and Brittany were traveling on Grand Avenue in St. Louis in a vehicle operated by Larry, when the vehicle operated by Theresa Shockley (Shockley), who is not a party to this appeal, entered Larry's lane, causing a collision and injuries to Larry and his daughters. Shockley was negligent in failing to yield the right of way and in failing to keep a careful lookout. As a direct and proximate result of Shockley's negligence, Larry and his daughters each suffered injuries to their necks and backs, with straining, spraining, tearing and wrenching of the soft tissues, medical expenses of approximately $2000 each for their reasonable and necessary care, and pain, suffering and emotional distress. Further, Donna alleged loss of consortium of her husband Larry, as a direct and proximate result of the negligence of Shockley. After the collision, plaintiffs were contacted by an agent of Progressive, Rob Purves (Purves) during which visit Purves provided plaintiffs with a pamphlet and made verbal statements, which together represented to plaintiffs that Progressive would be settling their claim, paying their medical bills, that it would be unnecessary to hire an attorney and that Progressive was assuring, guaranteeing, that Progressive would act as an insurer, guarantor, and indemnitor for any liabilities of its insured, Shockley. Subsequently, Progressive informed plaintiffs that it carries Lender's Collateral Protection, not liability insurance, and that plaintiffs should contact Shockley directly.

Thereafter, plaintiffs filed, probably in May 1996, a six count petition in the circuit court of the City of St. Louis. The first five counts were against Shockley, whom plaintiffs later voluntarily dismissed from the action. In Count VI, plaintiffs alleged that: Progressive visited plaintiffs and made and continuously ratified the representations discussed above; that such representations were of material fact; the representations were made fraudulently and for the purpose of inducing plaintiffs to rely upon them; that Progressive had reason to believe plaintiffs would rely on those representations; and as a direct and proximate result of the representations, plaintiffs incurred the medical bills mentioned above. Progressive filed a motion to dismiss Count VI for failure to state a claim on June 6, 1996.

On July 26, 1996, plaintiffs filed an amendment by interlineation, deleting the previous Count VI and replacing it with the amendment, which alleged that plaintiffs were visited by an agent and servant of Progressive, during which visit, the agent promised that Progressive would settle their claims, once completed, pay their medical bills, once incurred, and that it would be unnecessary to hire an attorney, as plaintiffs claims could be handled simply and more efficiently between plaintiffs and Progressive. On June 9, 1995, plaintiffs contacted Progressive and on June 30, 1995 were informed by Progressive that it carried only Lender's Collateral Protection, rather than liability insurance. Progressive's promises were made, continuously ratified, and never denied, withdrawn, or explained, with the intent that plaintiffs rely upon them. Further, plaintiffs alleged that they did rely on said promises to their detriment and demanded payment of their medical bills and other damages, which Progressive refused to pay. Also, they alleged that as a direct result of Progressive's breach of its promises, plaintiffs incurred medical expenses in the sum of approximately $7500, pain, suffering, and severe emotional distress. In addition to damages, plaintiffs sought interest and attorney's fees. Defendants moved to dismiss plaintiffs' amendment by interlineation of Count VI on July 29, 1996. The motion was denied on October 17, 1996.

Plaintiffs thereafter moved to file their First Amended Petition, which was granted by the trial court. In their First Amended Petition, plaintiffs added Counts VII and VIII. Count VI alleged essentially the same allegations as the previous amended petition, but also alleged that Purves presented them with a pamphlet, which was attached as Exhibit A, and that their reliance on Progressive's promises were justifiable. Further, they alleged that these representations were made in such conscious disregard as to justify punitive damages in the sum of $500,000.

In Count VII, plaintiffs alleged that Progressive was negligent in failing to properly investigate its coverage before representing to plaintiffs that it would cover their losses. Further, defendant misrepresented that it would cover plaintiffs' losses when it knew or should have known that it would be denying coverage. As a direct result of the negligence, plaintiffs incurred medical expenses, pain, suffering, and severe emotional distress. The acts were in such conscious disregard for plaintiffs' rights to justify punitive damages.

In Count VIII, plaintiffs alleged that the brochure presented to them by Progressive was misleading, deceptive, and/or untrue and misrepresented the coverage applicable to plaintiffs. Further, they alleged that Progressive violated Sections 375.936(4) and 375.936(10) RSMo.1994 (all further references herein shall be to RSMo.1994 unless otherwise noted), which were enacted for the purpose of protecting persons similarly situated to plaintiffs. As a direct and proximate result of the above negligence, plaintiffs...